Search xaam.in

The Patna High Court has set aside the
Bihar Assembly Speaker’s November order, disqualifying four rebel MLAs
on the grounds of “anti-party activities” and “voluntary surrender of
membership.”

Background:

Four JD(U) MLAs were disqualified from Bihar Assembly for anti-party activities, including cross voting in Rajya Sabha election.

After the MLAs allegedly cross-voted
during the Rajya Sabha by-poll in June last, the Speaker on November 1
terminated their membership and divested them of all facilities
available to legislators.

The speaker had disqualified them under the provisions of Anti defection law.

The MLAs had challenged the ruling in the High Court.

HC’s observations:

Defection and dissent were not
synonymous, and what the MLAs had done during the Rajya Sabha by-poll
was “dissent, and it does not come under the anti-defection law.”

The MLAs had faith in the party and
did not defect. Isolated act of dissent, and nothing further to add,
cannot amount to voluntary surrender of membership.

The anti-defection law:

The 10th Schedule to the Constitution, popularly referred to as the ‘Anti-Defection Law,’ was inserted by the 52nd Amendment in 1985.

The grounds for disqualification under the Anti-Defection Law’s Articles 102 (2) and 191 (2):

A Member of Parliament or state legislature was deemed to have defected

When the elected member voluntarily gives up his membership of a political party.

If he votes or abstains from voting
in such House contrary to any direction issued by his political party or
anyone authorised to do so, without obtaining prior permission.

Independent members would be disqualified if they joined a political party.

Nominated members who were not
members of a party could choose to join a party within six months; after
that period, they were treated as a party member or independent member.

Exceptions under the Law:

Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.

A party could be merged into another if at least two-thirds of its party legislators voted for the merger.

The law initially permitted splitting of parties, but that has now been outlawed.

The anti-defection law raises a number
of questions, several of which have been addressed by the courts and
the presiding officers.

Recommendations made by various committees:

The Venkatachaliah Commission
recommended that defectors should be barred from holding any ministerial
or remunerative political office for the remaining term of the House.
It also said that the vote of any defector should not be counted in a
confidence or no-confidence motion.

The rationale that a representative
is elected on the basis of the party’s programme can be extended to
pre-poll alliances. The Law Commission proposed this change with the
condition that partners of such alliances inform the Election Commission
before the elections.

The Goswami Committee, the Election
Commission and the Venkatachaliah Commission to Review the Constitution
(2002) have recommended that the decision regarding disqualification
should be made by the president or the governor on the advice of the
Election Commission. This would be similar to the process for
disqualification on grounds of office of profit.

SC’s interpretation on ‘Voluntarily giving up’ phrase:

The Supreme Court, in the Ravi Naik
vs. Union of India case, has interpreted the phrase ‘voluntarily gives
up his membership.’ It says: “The words ‘voluntarily gives up his
membership’ are not synonymous with ‘resignation’ and have a wider
connotation. A person may voluntarily give up his membership of a
political party even though he has not tendered his resignation from the
membership of that party.

Even in the absence of a formal
resignation from membership, an inference can be drawn from the conduct
of a member that he has voluntarily given up his membership of the
political party to which he belongs.

In another judgment in the case of
Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme
Court held that the act of giving a letter requesting the Governor to
call upon the leader of the other side to form a Government itself would
amount to an act of voluntarily giving up membership of the party on
whose ticket the said members had got elected.